XCHRX LIU KA CHUN v. LEE KIN KEUNG

HCPI 578/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.578 OF 1999

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REASONS FOR DECISION

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1. This matter first came before Master Cannon on 3 April 2000 by way of Check List Review hearing. At that hearing, Master Cannon made the order that the admissibility of the defendant's accident expert report is to be determined by the PI judge at the Pre-trial Review. The matter then came before me by way of Pre-trial Review on 12 June 2000 when I ordered (inter alia) that no expert evidence as to liability be adduced at the trial either in written or oral form. Against this order, the defendant now appeals. The following is my reasons for making the order appealed from.

Background

2. The plaintiff is an infant and brings this action by his father and next friend. The plaintiff's claim is for damages for personal injuries sustained by him in a traffic accident which occurred at 12:55 pm on 13 September 1997 when the plaintiff was knocked down by a private car, owned and driven by the defendant, which was travelling downhill along Tsuen King Circuit heading towards Castle Peak Road. At the time of the accident, the infant plaintiff was crossing the road in an easterly direction at a pedestrian crossing near the Hsin Kuang Restaurant.

3. The particulars of negligence relied upon by the plaintiff were that the defendant was driving at an excessive speed, driving without due care or attention, failing to keep any proper lookout or to heed the presence of the infant plaintiff, failing to apply his brakes in time so as to avoid colliding with the infant plaintiff, failing to give precedence to the infant plaintiff and failing to approach a pedestrian crossing with due care and attention.

4. The defence in this case denies negligence of the defendant and alleges contributory negligence of the infant plaintiff. The particulars of contributory negligence are that the plaintiff dashed out onto the road when it was dangerous to do so, when the traffic light signal was against pedestrian at the pedestrian crossing, failing to keep any proper lookout or to heed the presence of the defendant's car, dashing out onto the road into the path of the defendant's car without giving the defendant any reasonable opportunity of avoiding the said collision, and using the road without due care and attention.

5. There is no dispute between the parties that Tsuen King Circuit is a road divided into two carriageways with one lane on each carriageway. The road is situated on an incline therefore one lane goes upslope whereas the other lane goes downslope. At the time of the accident, the defendant was driving his car downslope. The spot where the accident occurred is a pedestrian crossing controlled by traffic lights with a central safety island in the middle of the road.

6. At the time of the accident, the infant plaintiff was crossing this road together with his grandmother and also an aunt of his. Both the grandmother and the aunt of the infant plaintiff have given witness statements which contain their eye-witness account of how the accident happened.

7. The account of the grandmother, Lee Sai Kau, is as follows. At 12:45 pm on the day in question, she, together with her two grandsons (one of whom being the infant plaintiff, then aged four), her niece, Liu Muk Lan (i.e. the infant plaintiff's aunt) and two other children intended to cross Tsuen King Circuit on their way to have lunch at the Hsin Kuang Restaurant which was on the other side of the road from where they were. Initially, they stood in front of the pedestrian crossing on the uphill carriageway side of the road. There were altogether about 10 pedestrians waiting to cross the road together with them. The infant plaintiff was standing in between his grandmother and his aunt, with the grandmother to the right of the infant plaintiff and the aunt to his left. The left arm of the grandmother was stretched over the infant's shoulder and she was holding his left hand with her left hand. The other three children were standing in front of the aunt. At that time, the traffic light was red against pedestrians. However, because there was no traffic along the uphill carriageway, they, together with some of the pedestrians, started to cross that part of the road against the traffic lights. All of them reached the safety island in the centre of the road.

8. According to the grandmother, they, together with the other pedestrians, stopped at the central safety island to observe traffic on the downhill carriageway. At the central safety island, the respective position of the aunt, the infant plaintiff and the grandmother had not changed, and the grandmother was still holding the infant plaintiff's left hand as before. The grandmother then saw a goods vehicle and a taxi passing her on the downhill carriageway. The goods vehicle and the taxi did not appear to her to be moving too fast. She then saw the defendant's car coming downhill on the downhill carriageway. She first noticed the defendant's car when it was about 10 metres away from her. At this juncture, the infant plaintiff suddenly flung away her left hand and ran out into the road. She tried to stop him by reaching out her right hand but failed. At the same time, she put up her left hand to signal the defendant's car to stop. According to her, the defendant's car did not slow down or brake, and as she was unable to stop the infant plaintiff from running into the road, no sooner had the infant plaintiff got free from her that he was hit by the front part of the defendant's car. The infant plaintiff was thrown up onto the front bonnet of the defendant's car and then bounced off onto the ground.

9. She is unable to give the speed of the defendant's car but said that it was travelling much faster than the goods vehicle and the taxi. Moreover, at no time before the impact did the defendant's car slow down or brake or swerve to avoid the accident, nor did the defendant sound his horn either. After the impact, the defendant's car did not stop at once. It travelled for another 10 metres or so before it finally came to a complete halt.

10. She also stated in her statement that after the defendant had alighted from his car, she had asked the defendant why he drove in this way. To this, the defendant replied that he was so afraid that he did not know how to brake. She also stated that she had no idea why the infant plaintiff suddenly flung away her hand and ran out onto the road, and that he had never done that before.

11. The aunt of the infant plaintiff, Liu Muk Lan, also gave a witness statement in this case. She confirmed that at the time and date in question, she, the infant plaintiff, his grandmother and three other children were all going to the Hsin Kuang Restaurant for lunch. They had crossed one-half of Tsuen King Circuit reaching the central safety island in the middle of the road. At the central safety island, she was watching over the other three children who were standing in front of her while the grandmother was holding the infant plaintiff's hand, and the two of them were standing slightly in front of her to her right side. Suddenly, she saw the infant plaintiff running out onto the road and the grandmother struggling to catch him. As soon as the infant plaintiff ran out onto the road, she looked to her left and saw the defendant's car travelling downhill, about seven to eight metres away from her. Upon seeing this, she was too frightened to see what would happen and so did not witness the actual impact between the defendant's car and the infant plaintiff. She is unable to tell the speed of the defendant's car. After the accident, she saw the infant plaintiff lying on the opposite side of the road and as she was feeling too weak to do anything, she returned home.

12. Immediately after the accident, the defendant also gave a statement under cautioned to the police. His account to the police is as follows. At the material time, he was travelling downhill along Tsuen King Circuit in second gear at the speed of 40 kilometres per hour. About 10 metres before reaching the traffic lights where the accident took place, he saw the infant plaintiff walking from the traffic light controlled yellow crossing on his right hand side and arriving at the third yellow crossing stripe, counting from the right side pavement. The infant plaintiff did not stop walking and ran on the yellow crossing from right to left in a direction of the pavement of Hsin Kuang Restaurant. He, the defendant, saw the traffic light ahead of him showing green for vehicles and he continued travelling in second gear at the speed of 40 kilometres per hour, preparing to travel past the traffic light controlled area. However, when the front of his vehicle had entered the yellow stripes of the traffic light controlled crossing, the infant plaintiff ran out from the safety island and was on the first yellow stripe of the crossing for the pavement of Hsin Kuang Restaurant. Thus the offside front of his vehicle hit the left side body of the infant plaintiff. Then he did not know the position of the infant plaintiff. He was afraid that the infant plaintiff had something wrong (sic), so he decelerated and stopped in the middle of the road waiting for policemen. Before and after the arrival of policemen, he did not move his vehicle. This account of the accident was given by the defendant between 2:40 pm and 3:10 pm on 13 September 1997 in the office of the Accident Investigation Division, New Territories.

13. Immediately after giving this version of what happened to the police, the defendant was cautioned for careless driving. Under cautioned, the defendant said :

"At that time, I descended the road and saw green light. So, I proceeded in 2nd gear at 40 kilometres. However, LIU Ka-chun suddenly ran out to the road. So, this accident occurred."

14. After the statement made by the defendant under caution, the defendant was asked a number of questions, still under caution, by the police officer. To these questions, the defendant answered as follows :

"Question (2): When you first saw LIU Ka-chun, LIU Ka-chun was crossing the road at the traffic light controlled yellow crossing on the opposite carriageway. Then, did you notice that LIU Ka-chun would walk to your lane in front of you and crossed the road?

Answer (2): I did not suppose that LIU Ka-chun would run to the traffic light controlled yellow crossing in front of my vehicle to cross the road because the traffic light in front of me was showing green for the vehicle to go.

Question (3): After you had first seen LIU Ka-chun, did you go on paying attention to where LIU Ka-chun ran to?

Answer (3): I did look at LIU Ka-chun. I saw LIU Ka-chun running to the pavement on my left side. Nevertheless, I did not know why LIU Ka-chun ran to the front of my vehicle. It happened all of a sudden.

Question (4): Did you see LIU Ka-chun stop on the safety island at the traffic light?

Answer (4): No. LIU Ka-chun was running all along.

Question (5): You said that after the accident, you decelerated and stopped the vehicle. Then, why was the distance between the position where your vehicle stopped and the position where the car crash occurred was as far as 16 metres?

Answer (5): It was because it happened all of a sudden that I hit someone. So, I responded slower than usual time and stopped the vehicle late. That was why I stopped at such a far away distance.

Question (6): Apart from LIU Ka-chun, did you see any other people on the traffic light controlled yellow pedestrian crossing?

Answer (6): I saw some people waiting for crossing the road on both sides of the pavement of the yellow crossing. Nevertheless, I do not remember whether there was anyone on the safety island in the middle of the road. However, the boy LIU Ka-chun was the only one running on the entire yellow crossing.

Question (7): You knew that there were many people waiting for crossing the road on both sides of the pavement. Then, why didn't you slow down the vehicle?

Answer (7): It was because I saw the people on the pavement had all stopped. Moreover, the light signal for my direction was green. So, I went on travelling at a speed of 40 kilometres. When I looked at the light signal, it was green. So, I did not slow down.

Question (8): From the moment you first saw the injured person until the moment you knocked down the injured person, LIU Ka-chun, did you look and see the injured person, LIU Ka-chun, all along?

Answer (8): Yes, but it was in a short time. However, I did not know how many seconds it was."

15. The defendant has also filed a witness statement in respect of these proceedings. In that statement, the defendant gives the following account of the accident. At the material time and date, the defendant was driving vehicle registration No.EM7537 downslope along Tsuen King Circuit, travelling at about 30 kilometres per hour in second gear. When he was approaching the pedestrian crossing (where the accident occurred), he observed that the traffic signals for vehicular traffic was green. At the time, he saw several people waiting to cross the road on either side of the road and on the central safety island. His vehicle was then about 10 metres away from the crossing. He began to decelerate. When he had driven beyond the stopline of the crossing, suddenly, he felt the offside front part of the vehicle hitting an object. He applied his foot brakes and brought the vehicle to an immediate stop. In order not to block forthcoming traffic, he drove his vehicle forward and stopped at 20 metres from the crossing. He alighted from his vehicle and found a little child lying on the ground. It was only then that he realized that his vehicle had hit the child when the child dashed out onto the pedestrian crossing from the central safety island.

16. The defendant then continues in his witness statement to say that after the accident, he went to a police station to assist in the investigation of the accident. He gave a statement to the police, and at the time he was frightened and nervous. He was then asked some questions by the police. The defendant denies having told the officer that he had seen the child running all along from the opposite lane and that he had noticed him 10 metres from the crossing. The defendant also states that he had made a complaint to that police officer as to what had been written down by the officer. Under caution, the defendant says he wrote down in the statement that the accident was caused by the child who dashed across the road suddenly when the traffic light governing vehicular traffic was green at the time.

17. It is also not in dispute between the parties that the defendant was summoned for careless driving but was acquitted after trial at the Tsuen Wan Magistracy on 24 March 1998.

18. At the 1st Check List hearing held on 21 December 1999, Master Cannon ordered, inter alia, that the defendant is to file and serve an expert report as to liability within 42 days and that the plaintiff is to file and serve an expert report as to liability within 42 days thereafter, if any. That order was made before any expert report was obtained by the parties.

19. Pursuant to that order, the defendant obtained an expert report on liability prepared by Dr Eric C.H. Lim dated 2 February 2000 ("the Report"). This Report was filed on 9 February 2000. At the 2nd Check List hearing held on 3 April 2000, the plaintiff, who was not relying on any expert evidence as to liability, objected to the admissibility into evidence of the defendant's expert report on liability on the basis that it was irrelevant and, therefore, inadmissible.

20. This matter was reserved by Master Cannon to be determined by the PI judge at the Pre-trial Review hearing.

The expert report of Dr Eric C.H. Lim

21. Part I of the Report deals with Introduction. In the Introduction, it reiterates the instructions given to him by the defendant's solicitors on 20 November 1999 which is to prepare a report concerning the accident and to include :

(a) reconstructing the occurrence of the accident;

(b) to give an opinion as to the speed at which the defendant's vehicle was travelling prior to the collision; and

(c) to ascertain the distance between the infant child and the defendant's vehicle when the infant child started dashing out onto the road.

22. Without going any further, it should be noted that these three matters upon which Dr Lim was given instructions by the defendant's solicitors, fall within the ambit of "findings of fact" which is the province of the trial judge and not for an expert. Immediately, the words of Stuart Smith LJ in the case of Liddell v. Middleton [1996] PIQR P36, at P43 comes to mind :

"We do not have trial by expert in this country; we have trial by judge. ..."

23. It then goes on to state that Appendix II to that Report contains a list of the documents supplied by the defendant's solicitors which have been reviewed by Dr Lim during the compilation of this Report. The list in Appendix II shows 10 documents as follows :

(1) Writ of Summons in Statement of Claim;

(2) Defence of the defendant;

(3) Witness Statement of the defendant dated 16 January 1999 with English translation;

(4) Police Statements of Lee Sai Kau dated 22 September 1997 and 20 October 1997;

(5) Magistracy Summons No.TWS800 of 1998 against the defendant together with Brief Facts of Case;

(6) Notes of Proceedings of the Magistracy Summons;

(7) MVE Accident Report of EM7537;

(8) Sketch Plans of the accident and six black and white photographs;

(9) Reports of Central Claim Services; and

(10) Police Statement of Lee Kin Keung (i.e. the defendant) dated 13 September 1997 with English translation.

24. Part II of the Report gives the background of the case. Part III of the Report deals with a site visit which was made on 21 December 1999 by Dr Lim. And from the site visit, Dr Lim has made a sketch of the scene as seen during the site visit.

25. Part IV of the Report is under the heading "Discussion". Under that part, the first sub-heading is 'A Reconstruction of the accident'. First of all, he states that there are significant inconsistencies in the available statements regarding the motion of the private car and the speed of the private car. After dealing with the inconsistencies in the defendant's statement to the police and his other statement, Dr Lim continues in his Report saying that he has assumed that the defendant did not see the child before the child ran into the path of the private car. (This assumption is a finding of fact for the trial judge to make and not a matter for an expert to assume.)

26. Under the next sub-heading, "Point of Impact", after referring to the available evidence, Dr Lim states that he believes that the child was hit after he stepped about one metre from the central safety island into the carriageway. He goes on to state that it appears from the defendant's statement to the police and the sketch attached to his (i.e. the defendant's) statement that the impact probably occurred closer to the left side of the pedestrian crossing. (Once again, this is a matter reserved for the trial judge and not for an expert to determine.)

27. The next matter which Dr Lim deals with is the final rest position of the child. After stating that there is no physical evidence to show the final rest position of the child, Dr Lim goes on in his Report to say that he has assumed that the child came to rest at some distance behind the rear part of the final rest position of the private car.

28. Dr Lim goes on to state that based on what was said by the defendant in his statement, he believes that the child was projected about 17 to 18 metres along the carriageway by the impact. Dr Lim then deals with the two inconsistent versions by the defendant (one in his police statement and the other version in his other statement) as to how the car finally came to stop. From these two versions, Dr Lim draws the conclusion that, therefore, the private car was more likely to have come to a complete stop in an emergency manner to the recorded position which is in agreement with the police statements of the defendant and the grandmother of the child. (Once again, this is a finding of fact for the trial judge and not for an expert.)

29. The next sub-heading is "Speed estimation". From the available evidence, Dr Lim says that he believes the child was probably running at a significant speed at the time of impact which provided the inertia for the child to traverse across the private car. He goes on to say that an accurate estimation of the speed of the child is very difficult but that published data gives the average running speed of a four year old child to be between 3 and 3.5 metres per second. At this speed, he concludes that the child would have taken less than 0.35 seconds to run to the point of impact. He goes on to state that the reaction time of an attentive driver is normally 0.9 seconds or slightly more, and that if the child was hit in less than 0.35 seconds after he ran into the road, it seems unlikely that the driver could have applied his brakes before the impact. This, says Dr Lim, is consistent with the statements given by the defendant that he hit the child before he could react.

30. Dr Lim then goes on to reiterate his belief that the private car came to a complete stop in an emergency manner after it travelled a significant distance from the point of impact. He further states that it is not known when the brakes on the private car were applied as there is no evidence of any tyre skid marks laid by the private car. He also states that it is not known how hard the driver applied his brakes. However, despite these unknown factors, Dr Lim goes on to estimate the speed of the private car to be about 34 to 38 kilometres per hour on the basis of several assumptions which he makes. He assumes that the only retardation force experienced by the child after he landed on the carriageway/pavement was the friction force from the carriageway/pavement which slowed and stopped the motion of the child. He also assumes that the child was projected about 17 to 18 metres from the point of impact; and thirdly, he assumes that the coefficient of friction as the child slid on the pavement/carriageway was 0.5 to 0.66. From this estimated speed of the car, Dr Lim goes on to say that as no braking is likely to have been applied before the child left the car, the private car was probably approaching at the same speed prior to the collision. This estimated speed, says Dr Lim, is very close to the approaching speed as stated by the defendant in his police statement.

31. Dr Lim then takes another approach to estimate the speed of the car by saying that the speed of the car can also be estimated from the total braking distance. In this alternative approach, Dr Lim says that the longer braking distance taken by the private car than that of the child suggested that the car experienced a lower rate of deceleration than that experienced by the child if the car was under braking before the child landed onto the carriageway. Therefore, he believes that the private car was slowing down with an average brake force coefficient less than 0.5. He further states that it is possible that the driver did not keep applying his brakes hard for a significant distance when he was slowing to a complete stop, and therefore the private car did not lay down any tyre skid marks. He further states that the private car probably travelled about 23 to 24 metres after the impact. On the assumption that the private car driver applied his brakes in 0.9 seconds after he noticed the child (i.e. 0.55 seconds after he hit the child), Dr Lim estimated that the speed of the car at impact would be about 45 to 46 kilometres per hour if the car had slowed down with a brake force coefficient of 0.5. He further states that the speed of the private car would have been lower if the driver had applied his brakes lighter such that the effective brake force coefficient was lower than 0.5.

32. Dr Lim goes on to state that based on these two approaches, the estimated speeds of the car are lower than the speed limit of the road. He goes on to state that as the driver was probably only able to apply his brakes when the child was leaving the bonnet of the car, he believes that even if the driver applied his brakes harder, he would only reduce the braking distance of the car but would not affect the impact force and projected distance of the child.

33. From the above and on the assumption that the private car was travelling at a constant speed prior to the impact, Dr Lim estimates that the private car was approaching the scene at about 34 to 38 kilometres per hour.

34. Secondly, on the basis that the car was travelling at about 34 to 38 kilometres per hour and that the child ran into the carriageway for 0.35 seconds before the impact, Dr Lim comes to the conclusion that the distance between the child and the car when the child ran onto the carriageway would have been about 3.3 to 3.7 metres. As such, Dr Lim says that even if the car had been travelling at a speed of 50 kilometres per hour or less, it would not have been possible for the driver to react so as to avoid the collision.

The law

35. The law in relation to when expert evidence on liability may be relevant and therefore admissible in road traffic cases has been stated with clarity and precision by Stuart Smith LJ in Liddell v. Middleton where he said at P42 :

"... In some cases expert evidence is both necessary and desirable in road traffic cases to assist the judge in reaching his or her primary findings of fact. Examples of such cases include those where there are no witnesses capable of describing what happened, and deductions may have to be made from such circumstantial evidence as there may be at the scene, or where deductions are to be drawn from the position of vehicles after the accident, marks on the road, or damage to the vehicles, as to the speed of a vehicle, or the relative positions of the parties in the moments leading up to the impact."

Further down in the same page, Stuart Smith LJ, in the same judgment, goes on to state that when expert evidence would be irrelevant and inadmissible as follows :

"What he [the expert] is not entitled to do is to say in effect 'I have considered the statements and/or evidence of the eye witnesses in this case and I conclude from their evidence that the defendant was going at a certain speed, or that he could have seen the plaintiff at a certain point'. These are facts for the trial judge to find based on the evidence that he accepts and such inferences as he draws from the primary facts found. Still less is the expert entitled to say that in his opinion the defendant should have sounded his horn, seen the plaintiff before he did, or taken avoiding action and that in taking some action or failing to take some other action, a party was guilty of negligence. These are matters for the court on which the expert's opinion is wholly irrelevant and therefore inadmissible."

Finally, Stuart Smith LJ says at P43 :

"There has been a regrettable tendency in recent years in personal injury cases, both road traffic and industrial accidents, for parties to enlist the services of experts whether they are necessary or not. When they are not necessary, they simply add to the already high cost of litigation and the length of the trial. In industrial accidents an expert may well be needed to explain complicate machinery or to give evidence of practice in safety procedure. But in road traffic accidents it is the exception rather than the rule that expert witnesses are required. ..."

My decision

36. The present case is a simple running down case, one that happens almost daily in Hong Kong streets. There are eye witnesses to this accident, including the defendant himself who can give evidence as to the manner and the speed at which the car was being driven, as well as the manner in which the infant plaintiff came to be hit by the car. I can see nothing in this case to indicate that this case is exceptional such that it calls for an expert witness on liability.

37. Insofar as the Report of Dr Lim is concerned, it is objectionable in that, most, if not all of it, are made up of findings of fact which is a matter reserved for the trial judge and not for an expert. Moreover, a large part of those findings of fact contained in that Report are based on assumptions or beliefs by Dr Lim as to primary facts. At least, one of those findings was based on pure speculation. The speculation being the final rest position of the infant plaintiff. Having stated quite clearly in his Report that there was nothing to indicate where the final resting position of the infant plaintiff was after the collision, Dr Lim, nevertheless, proceeded to make findings based on where he speculated the final resting position of the infant plaintiff to be.

38. In my view, no part of this so-called expert Report falls within any area of expertise by an expert witness. It is wholly irrelevant and therefore inadmissible. To admit such a report into evidence at the trial would only be an open invitation to complicate an otherwise simple and straightforward running down case where there are eye-witness evidence as to its occurrence.

39. For these reasons, I ruled that the entire Report of Dr Lim to be inadmissible as evidence at the trial, and further ordered that no expert evidence on liability to be adduced at the trial either in oral or written form.